Per this story
New ‘United Crushers’ Beer Raising Red Flags with Artists
What legal rights, if any, would a graffiti artist have if someone copies their works and uses it on advertising and logos?
It’s pretty hard to assert ownership of intellectual property when you don’t want to be identified.
A graffiti artist would have the same rights as any (1) author of a (2) creative, (3) original (4) work of expression (5) that has been fixed in a perceivable medium.
IANAL.
So far as I can tell, they have the same intellectual property rights as anyone else (though what they’re claiming here looks like a trademark right specifically, not a copyright). But the catch is, in order to assert or defend those intellectual property rights, they’d have to first confess to a crime, which they probably don’t want to do.
There seem to be two intellectual property issues here: copyright and trade marks.
As far as copyright goes, the big problem is that the artist(s) don’t want to be identified, presumably because that might be subject to both criminal and civil sanctions for damaging someone else’s property. However, that would not affect rights under copyright: if you stole paints and canvas, and created a new Mona Lisa, you would still have copyright even though you could be prosecuted for theft, and someone else presumably still owns the materias that you have used.
As far a trade marks go, the use of the “United Crushers” name by the brewers is probably fine. Firstly, the United Crushers Art Collective would primarily engaged in an illegal activity. Furthermore, they aren’t sing the name to sell a product or service: no one is paying them for their graffiti. (I can conceive of owners of blank walls paying for graffiti to be painted on the walls, so I might be wrong there.) With an illegal activity not carried on for profit, I don’t think you can claim trade-mark rights.
In any case, a brewery is not in the same market as a group of graffiti painters, so the brewers could use the same “United Crushers” trade mark without any risk of confusion between the products.
Graffiti artist “Banksy” has managed to run a lucrative business while remaining anonymous.
How many years is “years ago”? The statute of limitations for low-level crimes such as theft or vandalism varies from state to state, but is rarely more than five years, and usually less (googling suggests it is 3 years in Minnesota).
Indeed, this is sometimes done to prevent more offensive graffiti. Most graffiti artists will usually respect pre-existing artwork, and not deface it.
Usually. But not always.
If graffiti artists had the same IP rights as any other artist, would that mean the owner of a business whose property had been vandalized could not paint over the offending artwork because that would destroy the artist’s intellectual property?
Basic IP rights don’t cover the destruction of the artwork by someone in lawful possession of it.
My son (who I believe has often taken part in art-bombing, although I don’t think he does it any more) has a collection of Banksy (or alleged Banksy) works on coasters. Did Banksy get any royalties for these coasters? Does he want any? Would he even care that we have beers sweating on his works?
By spraying it and abandoning it, aren’t they implicitly releasing it to the public domain?
Are there special rules for “transient art,” as if someone were to draw a picture in the sand at the beach, knowing the next tide would efface it, but someone else took a picture of it first?
According to Alley Dweller’slinks above Banksy is a has a business presence I’m guessing he’s operating anonymously from behind a wall of lawyers and holding companies. I’ll bet that if he didn’t authorize them beforehand his lawyers have gotten a piece of it by now.
I would imagine if someone was a famous artist, and someone else was selling prints of the photos, then yes.
Those are the biggest brewing vats I’ve ever seen …
Huh. That brings up the question-- would the owner of the paints and canvas have any claim toward the “new Mona Lisa”?
There’s this thing called “moral rights” that in countries in some cases prevents willful destruction of works without the creators permissions. Europe is fairly generous in this regard.
The US is a Johnny-come-lately to this, enacting the VARA law in 1990. It explicity prohibits such unauthorized willful or negligent destruction for visual works of “recognized stature”.
Yeah, “recognized stature” is about as solid as a pile of Jello.
In the case of Banksy art, I think there could be an argument made for “recognized stature”. So if Banksy hits your wall, better be careful. Not so sure about the work of this United Crushers art collective.
“Moral rights” laws can also cover the right to publish anonymously, etc. Hiding behind a corporate front with lawyers seems like a better idea.
Reminder: trademark and copyright are different ideas. Giles covers the basics of trademark here. The beer company is quite likely good here.
The term “United Crushers” is too short to be copyrighted on its own. If the original was written in a particular distinctive style and the beer company copies that, then that’s a problem. Ditto any artwork/logo from from the original.
Note that there are two levels of copyrights: unregistered and registered. If the collective never bothered to copyright the original (due to time and money), then the best they can hope for is to get the beer company to stop using their artwork (but not name) and a little money. No big payoff for damages, etc.
There is no implicit way to “release” a work into the public domain and, arguably, there might not be any explicit way either.
The only certain way for something to become a public domain work is for its copyright term to expire on schedule.
You might argue some kind of implicit license for certain uses however. And people can certainly take photographs of things that are visible in public—that doesn’t mean you can do anything you want with it.
By a wonderful coincidence, I just today participated in one other way: I put it in my will that all my writing (yeah, yeah, I know) goes into the public domain when I die.
But, right, not applicable to the scenario in the OP.